RECOMMENDATIONS ON AMENDING LAWS TO PROVIDE SPEEDIER JUSTICE AND ENHANCED PUNISHMENT IN SEXUAL ASSAULT CASES
- The term ‘rape’ as defined under Section 375 of the Indian Penal Code should be replaced with the term ‘sexual assault’. The same was recommended by the 172nd Law Commission Report on Review of Rape Laws in March, 2000.
- The definition of the term ‘sexual assault’ should be broad and should include acts of physical or sexual violence against a person in violation of the person’s bodily integrity and sexual autonomy. The words ‘bodily integrity’, ‘sexual autonomy’, ‘consent’, and ‘prohibited conduct’ should be defined in order to limit the judicial discretion.
- Forced sexual intercourse by a husband with his wife should be treated as ‘sexual assault’ and should attract punishment as prescribed.
B. Filing of FIR and Investigation
- The law should provide for at least one female police officer to be deputed at every Police Station.
- FIR in cases of sexual assault should only be registered by a female police officer.
- The law should explicitly state that no adverse inference would be drawn from a delay between the date of violence and the date of reporting of the act of violence.
- The Investigating Officer should preferably be a female police officer.
- Medical examination should be carried out on the date of FIR itself, preferably in the presence of female family members. The same should be carried out on a priority basis as expeditiously as possible.
- There should be a team of forensic experts in every district or one team for 3-4 districts. It should be the duty of this team to collect evidence from the body of victim of sexual assault, accused (if arrested) and from the place of occurrence. The report of forensic expert should be used to corroborate the other evidences during trial.
- Statement under Section 164 of the Cr.PC should be recorded on the same day when the FIR is filed.
- The survivor should never be called to Police Station during the investigation stage, for any further statement etc.
- If the Duty Officer of the concerned Police Station refuses to record the FIR, the law should provide for strict and immediate action to be taken against the concerned officer.
- During the stage of investigation, whenever the Investigation Officer wants to meet the victim for any purpose, he/she should record the reasons and purpose in the case diary before meeting and that part of the case diary should be signed by at least two police officers on duty at that time.
- The relevant portion of the above mentioned case diary should be produced before the Judicial Magistrate within 24 hours and the concerned Judicial Magistrate should sign such extract of case diary at the time of presentation and one copy be also retained by him/her.
- The charge sheet under Section 173 of the Cr.PC should be filed within 30 days from the date of recording of the FIR. If the investigating officer fails to file the Section 173 report within 30 days, strict action should be taken against him/her.
- The whole investigation should be carried out under the direct supervision of the concerned Superintendent of Police and he/she should countersign the charge sheet before filling it in the concerned court.
- In every hospital, a counselor should be appointed only for the purpose of counseling of the survivors of such incidents.
- The trial in cases of sexual assault must be conducted in fast track courts and should be conducted on the day to day basis. Fast track courts should be set up in every district for the same.
- The trial proceedings should be conducted in camera and should also be audio and video recorded. The importance of holding rape trials in camera mandated by Section 327 (2) and (3) Cr.PC was reiterated in State of Punjab v. Gurmit Singh (1996) 2 SCC 384.
- In the cases of hearing and speech impaired victims, sign language interpreter should be appointed to assist the victim and the Court for fair and proper communication and for just and fair trial. In the cases of mentally challenged victim, the experts of this field shall be appointed for the fair and just trial of the case.
- Every trial should be concluded within 90 day from the filing of the charge sheet.
- Examination in chief and cross examination of victim should be concluded on the same day if possible and should be deferred only due to paucity of time and not on any other reason.
- The law should minimize the number of times the survivor must testify so that the survivor is not re-victimized/traumatized.
- The law should provide the survivor the right to have the proceedings conducted by a lady judge. The High Court should ensure that there should be at least one lady judge in every district to try the cases of crime against women.
- The Public Prosecutor should be made answerable to the Chief justice of concerned High Court for the acquittal of the accused where a serious prima-facie case was seen to be made out. Where complicity or negligence of the Public Prosecutor is made out, the license to practice should be suspended.
- The should provide for broad range of circumstances in which consent is immaterial, such as sexual assault by an individual in a position of authority, such as that in a correctional facility or by individuals in certain professional relationships to the survivor such as an ongoing psychotherapist-patient relationship, intimidation or fraud.
- The law should restrict the inquiries into the complainant’s sexual conduct. Rape victim shield rules should be framed for the same.
- The statement of the survivor should be deemed to be true in accordance with Section 114A of the Indian Evidence Act. Burden of proving the charges as wrong should essentially be on defense.
- In case of visual disability of the victim, medical evidence, if available, should be treated as conclusive proof for identification of the accused.
Mitigating factors / Defenses:
- The amendment should clarify that it is no defense that the perpetrator believed that the survivor was not a minor, it is no defense that an underage person consented, and it is no defense that the perpetrator was intoxicated.
- The law should categorize the type of sexual assault and the penalties respectively. The categories can be following: (a) sexual assault; (b) sexual assault with a weapon, threats to a third party, or causing bodily harm; and (c) aggravated sexual assault.
- The punishment under Section 376 of the IPC should be enhanced from a minimum of 7 years to a minimum of 10 years. In cases of aggravated rape (gang rape, rape of a girl under the age of 12, custodial rape), the minimum punishment should be enhanced to life imprisonment.
- The punishment under Section 354 of the IPC (assault or criminal force to a woman with the intent to outrage her modesty) must be enhanced from 2 years to 5 years rigorous imprisonment.
- The punishment under Section 509 of the IPC (Word, gesture or act intended to insult the modesty of a woman) should be enhanced from 1 year to 2 years of rigorous imprisonment.
- In cases where violence is inflicted by the accused upon the survivor in the course of commission of rape and the survivor has suffered grievous hurt, the accused must be awarded life imprisonment. Life imprisonment should be deemed to mean a jail term for entire life as clarified by the Supreme Court. (http://www.thehindu.com/news/national/life-imprisonment-means-jail-term-for-entire-life-sc/article4133231.ece)
Mediation or Reconciliation
- The law should not allow mediation in cases of sexual assault at any stage of the process. The law should also not allow perpetrators to avoid punishment by reaching an agreement with the family of the victim/survivor or by providing the family with payment.
- The law should explicitly prohibit sexual assault cases from being dismissed upon the marriage of the perpetrator and survivor. Legislation should state that if a marriage occurs between the perpetrator and survivor, the case should be examined and considered for prosecution as a forced marriage.
Rights of Survivors (Victims)
- The law should provide that the survivor may have access, free of cost, to an advocate, who will be available to assist the survivor at all steps of the legal and forensic process.
- It should also provide for a comprehensive and free of cost health services which address the physical and mental consequences of the sexual assault, including unconditional tests for sexually transmitted diseases, for emergency contraception, pregnancy tests, and abortion services.
Penalties for non-compliance by authorities
- The law should provide for effective sanctions against all authorities who do not comply with the provisions of the law in cases of sexual assault. This should be in line with Section 4 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
Setting up a Women’s Helpline
- There should be a toll free number and a control room in every district, where the women/public can give information of crime against women in any area. This call centre should be handled by female staff only, whose work should be to register any complaint and forward it to the police department for action. A model of the same exists in the State of Gujarat by the name of ‘Hello Sakhi’ which is run by Centre for Social Justice and Kutch Mahila Vikas Sangathan in the Kutch district of Gujarat. (http://www.indianexpress.com/news/friend-on-call/891717/0)
- The control room should make a database of such complaints and there should be a quarterly review of such complaints. The area from which maximum complaints are received should be given special attention by the authorities.
- The name & details of the caller should be kept secret to avoid any harassment. In ordinary circumstances, the name and other details of the caller should not be given to the police. The control room should not be run by the police department but professionally trained female staffs.
- In tri monthly review meeting every OC to whom a complaint has been forwarded from control room should submit the action taken report and if any negligence on the part of OC is found in following or taking action against the culprit then he/she should be penalized.
- Committee should be constituted in every Government and public establishment according to the Vishakha guidelines.
- The Government should run awareness campaigns about the rights of women and how a woman can approach the authorities in case of violation of their rights.
- Gender sensitization workshops should be conducted for official of the police, judiciary and other departments of the Government. School curriculum should also include aspects of gender sensitization. The United Nations Declaration on Human Rights Education and Training adopted by the General Assembly on 19th December 2011 must be implemented.
- The Government should bring the police reform at the earliest as in many instances due to political affinity of the accused, the police do not act against him.